The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-03-12
SMITH AGAIN OUT OF COURT.
He Can Get No Rehearing of His Claims
to the Iieutenant-Goyernorship.
The Duty Of the Judges Was Completed When
They Affirmed There Was no Jurisdic-
tion-Judge Niblack's Views

was refused yesterday by the Supreme Court.
There were no dissenting opinions, that deciding
the question at issue being written by the Chief
justice, who is at this time Judge Elliott 1t
reads:
1t is not necessary to again discuss the questions
considered in former opinion but there is one
point made in the brief the petition for rehearing
which. perhaps, requires notice. 1t is said THE in
junction was granted by judge in vacation whose
jurisdiction depended not upon the summons in the
notice and service thereof not questioned From
this premise counsel reach the conclusion that uris
diction could not be challenged by verified answer.
This is novel doctrine for It implicitly assumes that
the powers of judge in vacation greater than
those of court in term, whereas is well known,
the powers of court in term very
much greater than those of judge in
cation. 1t surely needs argument to
prove that judge in vacation cannot have greater
jurisdiction than court in term. The counsels' posi-
ton is untenabe for another and that is this
1t tacitly that the plea did not fully cha
lenge the jurisdiction of the court when in fact the
plea did deny the jurisdiction of the Marion Circuit
Court to proceed at all in the The injunction
was aneiary proceeding, and, certainly,
where there is jurisdiction of the person to the
principal cause OF action there can be none over
| the PRINCIPAL There is yet stronger
reason against the position of counsel for all the
members of the court agree there no iurisdic
ton of the subject-matter of the action it
sought injunction that acts done in that branch
of the case 10y the relator could possibly confer
| jurisdiction of the person of the appellant.
The question of jurisdiction was the first question
| for decision. and of this question there were two
branches: First Whether the court had jurisdiction of
the subiect-matter Second. Whether the court had
/ jurisdiction Of the person The formal grounds of
the judgment of reversal were that the action was not
brought in the proper county and that the Circuit
Court had jurisdiction to issue the INDUCTION and
upon those points all Of the judges agreed. Upon the
other branch of the question of jurisdiction. that is
jurisdiction of the subjectater there diversity
of opinion. The majority agreed in holding that in
this the court had jurisdiction Of the subject
| h,,$o fha lima Inv
conclusion reached they did not in all things
agree. All Of the members of the court regarded the
question of the jurisdiction of the subiect-matter
before the court for decision and as two of the judges
We're of the opinion that the court had jurisdiction,
while the other judges thought otherwise. it was
deemed proper by the court that each of the Judges
should submit his individual views upon that branch
of the question. Judges Mitchell and Howk expressed
opinions upon the question to the rights of the
ties respecting the Office in controversy because they
regarded decision of that question as essential TO
| decision of the question of jurisdiction; but the
majority declined to any opinion upon that
question, for. in their judgment. their power was ex
hausted and their duty done when they affirmed that
| there jurisdiction.
| Petition overruled.
! With this opinion of the court was handed
down an individual expression from Judge
Niblack. which he termed his views regarding
the issue. 1t is as follows:
As the petition for rehearing brings this case again
before for such further consideration may
feeito be duty to extend TO avail myself OF the
views expressed at the former hearing. am in
duced to adopt this course partly account of the
prominent relations which the cause has been made
to sustain toward current public affairs in the State
| and partly account of the misapprehension which
seemingly exists in the minds of many persons to
the which restrained majority of the men,
bers of this court from the expression of any opinion
| upon the actual merits of the controversy which
caused the institution OK this suit
In the views which formerly submitted dis
cussed and expressed an opinion upon some matters
which Were only incidental and collateral to the ques-
ton of jurisdiction [ then considering. Such
merely incidental and collateral matters were referred
to and commented Illustrative of the peculiar
appellant and the relator. Smith and as, at least in
directly sustaining my position that the courts of the
State utterly without jurisdiction the sub
jectstter of that contest and for other purpose
The main features of the contest which followed
the presidential election held in the year 1876 have
become matter of history ard hence within the
reach and in consequences. presumably within the
common knowledge of all The Electoral Commits
sion created to assist in the settlement of that
test not in any proper view judicial tribunal.
Its duties KINDRED to those of referee in ju-
dcial proceeding. 1t Was authorized to examine and
to report to Congress upon certain questions
ferred to it. without trenching upon the right
Of the two houses of Congress to ultimately
decide who. if any had been elected either Pres
dent Vice president of the United States It was
organized upon the accepted theory that the final de
cson to who had beer elected rested ultimately
with Congress- and could not under the Constit
Of the United States be delegated TO any other tribu
nal and that consequently, whatever such Elect oral
Commission mightreport or recommend would be in its
nature advisory only.
Congress acted upon that theory when the conmis
sion reported, and the evidence of title which Mr.
Hayes thereafter received made TO rest, and still
rests, upon the subsequent action of Congress- which
in its effect declared him to have been duly elected
During tho continuance of the contest some of the
friends of Mr.. Tlden becoming discouraged with the
prospect of obtaining favorable decision otherwise
in his behalf. naugurated movement to have Con
gress pass act comforting jurisdiction oil the
matters in dispute upon court of the United
States, and authorizing such court to determine al
questions of title arising out of tho conflicting claims
] Of thn Isuta aft dana
and very general consultation. informal but none
the less final and decisive conclusion reached 10y
those feeling themselves most interested that the
contest in all it's essential features. potica
contest the decision Of which the Constitution had de
VOWED exclusively upon the two houses of Congress
and that, consequently Congress could not convert il
into Judicial question and confer upon court the
power to hear and to finally determine it.
The conclusion thus informally reached has since
been generally accepted and acquiesced in by the
country the more recent debate in Congress the
subject will fully establish. Moved and quickenet
by the events attending shat remarkable contest Con
gress has. within the past few months, enacted Law
specifically providing for the in which all con
tests concerning the election of either President OF
Vicepresdent shall hereafter be settled by the tive
houses Of that body and the exclusive power of Con
gress to determine all such contests will probably
never again be considered open question. If any
person will tafe the trouble 70 compare ns severa
sections of ON State Constitution having reference
the election and induction into Office of Governor
Acknowledgements with the corresponding provis
ions Of the Constitution of the United States con
corning the election and induction into Office of Presi
dent and Vice-president he will readily perceive tina
all matters in any affecting the election ant
title OF Governor and Lieutenant governor more
expressly conferred upon the General Assembly thar
similar matters touching the election and title OF
President and Vicepresdent devolved upon Congress
As to some features of the difference between
political and judicial controversy, the case o.
Luther VS.. Borden. z Howard, q. S. l.
l have therefore, believed from the first and fur
Their investigation has ripened that belief into an i'm
peratve conviction that the court below did not have
and that neither it any other court of the Stat
could. under the Constitution. have conferred upon
jurisdiction the question whether any per
Son has been lawfully elected Governor or Lieutenant
governor. The consequent impropriety Of any mem
Der of this court who had reached the same or SINH
lar conclusion expressing opinion upon the direc